Generally speaking, censorship is the control of speech and other forms of human expression. For the most part, bodies that partake in censorship attempt to provide stability for and strengthen their control over certain individuals and groups under their authority. Censorship commonly takes place in the following areas: morally questionable material like pornography, military intelligence, corporate secrets, government actions, and religiously objectionable material. Legally speaking, censorship involves the attempts of government agencies to restrict public forms of communication. These forms of communication include holding public meetings and protests, publishing books and other written materials, and providing viewpoints and information in newspapers and magazines, or on the radio, television, and Internet.
Prior Restraint Versus Subsequent Punishment
The two primary ways a government can censor material are either through prior restraint or subsequent punishment. Prior restraint refers to a government’s attempts to prevent material from being released to the public. Prior restraints include legislation requiring a person to seek government permission before publishing or broadcasting information as well as government injunctions and orders barring the public release of specific material. Subsequent punishment, on the other hand, attempts to censor material through punishment after the offending material has already been published. Types of subsequent punishment include lawsuits for defamation, slander, and libel as well as criminal statutes for publishing certain material, such as pornography.
In US jurisprudence and, to some extent, in European legal codes like the German Basic Law, the law has been strikingly more hostile toward prior restraint than subsequent punishment. For example, in Nebraska Press Assn. v. Stuart, Chief Justice Warren Burger of US Supreme Court writes, “[P]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights” (427 US 560). Some authors have questioned the distinction between prior restraint and subsequent punishment. Eric Barendt (2005) argues that sometimes the effects of subsequent punishment may be greater than prior restraint because a publisher’s fear of facing prosecution and an unpredictable prison sentence may be particularly high. Furthermore, he states that criminal statutes against a wide range of material – such as those against pornography – affect many more publications than a prior restraint – a court or administrative order, for example – against a single publication. However, Barendt does acknowledge the main reason why the courts in western Europe and North America have been more hostile toward prior restraints. Prior restraints prevent the censored material from ever being distributed in the public. On the other hand, material facing subsequent punishment still enters the marketplace of ideas, allowing public criticism and review. According to US constitutional scholar Alexander Bickel (1975, 61), “A criminal statute chills, prior restraint freezes.”
Historical Background of Prior Restraint
Historically, the roots of censorship in Anglo American law can be traced to King Henry VIII’s use of prior restraints in sixteenth-century England. In part to develop a favorable relationship with the Catholic church in Rome, Henry tried to assist the church by controlling the heretics’ freedom of expression. In 1529, he executed booksellers and anyone else who owned copies of books he had prohibited. One year later, Henry created the first licensing system outside of the church. All religious materials had to be scrutinized and approved by the clergy before publication. Anyone who disobeyed this order faced fines, imprisonment, and execution. Although soon after this, Henry had a rift with the Catholic church and began executing Catholics, he recognized that through censorship he could strengthen his authority by controlling public opinion. Thus, in the Proclamation of 1538, he expanded the licensing system to include all printing. In particular, no criticism of the government was allowed. This, according to Steven Helle (2007), was the first time political expression was censored using a licensing system. The system existed in England long after Henry’s reign and was not abolished until 1694 when the House of Commons allowed the act to expire. The licensing system endured in the American colonies until the 1720s, when a Massachusetts grand jury declined to indict a Boston newspaper publisher for refusing to abide by the legislature’s licensing system.
To a certain extent responding to the licensing systems and other acts of prior restraint in England and the United States, Sir William Blackstone (1836, Four commentaries, 151– 152, 1st pub. 1769), in Commentaries on the laws of England, wrote the following in what has been considered the foundation of the doctrine against prior restraint: “The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this is to destroy the freedom of the press: but if he published what is improper, mischievous, or illegal, he must take the consequences of his own temerity.” Blackstone clearly supported the notion that a “free state” can make a distinction between prior restraint and subsequent punishment. While he emphatically states that prior restraints are inconsistent with freedom of the press, he suggests that subsequent punishments for “improper, mischievous, or illegal” materials are not.
Rationale for Doctrine Against Prior Restraint
According to Vincent Blasi (1981), prior restraint is antithetical to the following three premises inherent in the limited government and libertarian theories that produced the First Amendment of the US Constitution and other codes against prior restraint: (1) distrust of government, (2) acceptance of risk, and (3) respect for individual autonomy. First, Blasi argues that by rejecting prior restraint, governments acknowledge that societies should base their trust in individuals and the public rather than in the state. Conversely, by regulating the public space, prior restraints can prevent open government criticism.
Second, freedom of speech includes accepting risks. Governments that impose prior restraints try to deter worst-case scenarios and provide stability and security. However, the doctrine against prior restraint argues that a government’s worst-case scenarios usually do not come true, and a greater risk to society is not allowing the speech to be published. And finally, prior restraint restricts the autonomy that individuals in a constitutional system of limited government should have in relation to the state. Although public forums scrutinizing government action may create certain burdens on the state, supporters of the doctrine against prior restraint argue that this is a suitable price to pay for individual autonomy.
Types of Prior Restraint
Administrative Censorship Versus Judicial Restraints
A major question regarding the doctrine against prior restraint, as practiced by western democratic governments, is whether judicial injunctions should face the same hostility in the courts as administrative censorship. Most forms of administrative censorship – when an administrative official or committee rejects certain material prior to publication – are condemned almost universally by western democratic governments. However, many countries differ as to whether judicial injunctions and orders to stop the issue of certain publications should be more tolerable than administrative restraints.
In England, for example, the courts will grant injunctions in certain cases but not others. English courts usually will refuse to grant an injunction to stop defamatory allegations before a full trial if the defendant will argue that the accusations are true or if the comments can be perceived as a suitable comment on public interest matters. On the other hand, the courts are willing to grant injunctions after a successful libel lawsuit, as well as temporary injunctions in breach of confidence and copyright cases.
Similarly, German and French courts are willing to grant temporary injunctions in certain cases regarding defamation and privacy. Although the third sentence of Article 5(1) of the German Basic Law states, “There shall be no censorship,” the German courts have never argued that this statement should disallow granting temporary judicial orders to stop publication of certain material. In the US, on the other hand, the courts have argued that the doctrine against prior restraint applies to judicial restraints as well. For example, in the 1971 Pentagon Papers case, the US Supreme Court argued that temporary orders granted against newspapers for revealing confidential government secrets are unconstitutional. Only very rarely have American courts argued that injunctions are consistent with the First Amendment of the US Constitution.
Confidential Government Information
Regarding confidential government information, European courts have generally given greater consideration to accepting prior restraints than their American counterparts. The primary justification in accepting prior restraints in these circumstances is that if the law does not prevent the publication of government secrets, then the harm will have already taken place, and subsequent punishments would be useless. The Spycatcher litigation in England is one example in which the courts stopped the publication of government confidential information. In this case, the English Attorney General in 1986 obtained interlocutory injunctions to prevent the Observer and Guardian newspapers from printing allegations from former MI5 agent Peter Wright about the English security services. Although the newspapers applied to discharge the injunctions, the injunctions were upheld initially by the Court of Appeal and subsequently by the House of Lords. The case then went to the European Court of Human Rights, which sided with the newspapers and ruled that maintaining the injunctions after July 1978 was incompatible with freedom of expression. The court continued to say that although all prior restraints are not incompatible with the European Convention on Human Rights, “the dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the Court” (14 EHRR 153, para. 60). The court argued that delaying a story can remove its interest and value.
The position of US courts regarding the issue of prior restraints on confidential information is significantly different from that of the English courts. In the 1931 case Near v. Minnesota, the US Supreme Court left open the possibility of prior restraints on government secrets. Chief Justice Charles Evans Hughes’s opinion states, “[T]he protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases.” He suggests that confidential government and military secrets could be examples of “exceptional cases” (238 US 717). In the Pentagon Papers case, however, the Supreme Court denied a government request to prevent the Washington Post and New York Times newspapers from publishing secret State Department records on US involvement in the Vietnam War. The justices disagreed over when injunctions should be issued regarding government confidential information. While Justices Hugo Black and William Douglas stated that the First Amendment does not allow any prior restraints, the majority of the Supreme Court supported the position that an injunction can be issued if publication of confidential government information will cause irreparable damage to vital national interests.
While courts in western democratic states continue to debate to what extent prior restraints in defamation, privacy, and confidential information cases are acceptable, authoritarian regimes in China and Saudi Arabia have practiced some of the most stringent forms of administrative prior restraint. Within the last decade, both countries have expanded their use of prior restraint over one of the most up-to-date methods of publicly disseminating information: the Internet. In December 2000, the Chinese government passed a series of regulations explaining why and how the Internet would be censored. The Chinese government has established a prior restraint on certain Internet content by creating a nationwide firewall, which blocks thousands of websites that it deems inappropriate. Using domestic software, China filters not only sexually explicit material, but also websites it considers politically sensitive, such as those of overseas human rights organizations, certain news organizations, and sites related to Taiwan, Tibet, the Falun Gong movement, and dissident and pro-democracy groups.
Similarly, the Saudi government has established the most widespread and technologically advanced filtering system in the world to block all online material that the ruling family argues is contrary to Saudi Muslim customs and values. A government body called the Internet Services Unit maintains specialized proxy equipment, which processes all website requests from within the country and compares them to a blacklist of banned sites. If the requested site is included in the blacklist, then it is blocked. The blacklists are purchased from commercial companies and renewed on a continuous basis. In addition to the commercial blacklists, Saudi censors contribute other websites they deem inappropriate. Despite political opposition groups and others who have used increasingly sophisticated techniques to circumvent government censorship and disseminate information online in China and Saudi Arabia, prior restraint has allowed these governments to continue to maintain a stranglehold on power in the same way that King Henry VIII did with his licensing system hundreds of years earlier.
- Barendt, E. (2005). Freedom of speech. Oxford: Oxford University Press.
- Bickel, A. (1975). The morality of consent. New Haven: Yale University Press.
- Blackstone, W. (1836). Commentaries on the laws of England: In four books, with an analysis of the work, vol. 4 (ed. J. E. Hovenden & A. Ryland). London: S. Sweet. (Original work published 1769).
- Blasi, V. (1981). Toward a theory of prior restraint: The central linkage. Minnesota Law Review, 66, 11– 93.
- Emerson, T. (1955). The doctrine of prior restraint. Law and Contemporary Problems, 20, 648 – 671.
- Helle, S. (2007). Prior restraint. In W. W. Hopkins (ed.), Communication and the law. Northport, AL: Vision, pp. 53 – 69.
- Hughes, C. (2004). Controlling the Internet architecture within Greater China. In F. Mengin (ed.), Cyber China. New York: Palgrave Macmillan.
- Kalathil, S., & Boas, T. (2003). Opened networks, closed regimes: The impact of the Internet on authoritarian rule. Washington, DC: Carnegie Endowment for International Peace.